June 22, 2024

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Anticipation for Dummies | Patently-O

6 min read
Anticipation for Dummies | Patently-O

by Dennis Crouch

My individual identify is quite exceptional. But, there are quite a few of us, together with the most  Dennis Crouch, the world’s most famous people music double bassist. The photo below exhibits Dennis Crouch executing together with Allison Kraus and Robert Plant. It is exceptional, but occasionally individuals get bewildered about who-is-who, but we swiftly determine it out.  And, in our environment of simple data-monitoring, some folks want owning prevalent names to enable keep away from undue detection.  There is no central naming authority and so any try to assure one of a kind names would likely are unsuccessful.

RFID chips are little digital identification tags and, like names, RFID chips do the job very best when supplied a exclusive serial selection.  For business items, a popular technique is to have a 3-part ID quantity that identifies the model, the class of goods, and the individual product.  The components does not have any anti-authoritarian bias, but it is even now a tricky method to make sure uniqueness – specifically in a dispersed world wide technique.

Adasa Inc. v. Avery Dennison Corp., — F.4th. — (Fed. Cir. 2022).

Adasa’s U.S. Pat. No. 9,798,967 facilitates distinctive RFID serial numbers, enabling them to be designed on-demand from customers and without the need of added authorizations or queries to some central authority. The basic resolution here: some RFID authority allocates a block of serial numbers to the RFID creator who then presents every RFID staying established a distinctive serial variety taken from the block.

In 2017, Adasa sued Avery Dennison for patent infringement. At the shut of discovery, both equally sides built quite a few summary judgment arguments:

  • Avery Dennison moved for summary judgment of non-infringement — DENIED.
  • Avery Dennison moved for summary judgment of ineligibility — DENIED.
  • Adasa moved for summary judgment that its claims have been not-invalid as anticipated/obvious (vis-a-vis prior art instructed by Ad). — GRANTED.
  • Asada moved for summary judgment that its claims have been infringed — GRANTED IN Component (District courtroom held declare 1 was infringed).

Hence, at the summary judgment (pre-demo), the district court docket entirely sided with the patentee as to declare 1, getting it infringed and not invalid.  All that was remaining for claim 1 was a demo on damages.  At that position, other claims ended up still pending, but the patentee effectively asked for that all those promises be dismissed without the need of prejudice so that the case could efficiently shift forward.  At demo, the jury returned a verdict of .45 cents for every chip — which additional up to $35 million.   The district court docket also added a $20 million sanction from the defendant for discovery abuse. (Ad had unsuccessful to disclose much more than two-billion RFID chips it had offered right up until a article-trial audit discovered their existence).

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As I was reading this situation, I was confident that the Federal Circuit was likely to flip the full table dependent on eligibility.  But no, the Federal Circuit affirmed the district court’s summary that the claims are directed to a “hardware-based RFID serial number details construction designed to permit technological improvements to the commissioning course of action.”  It unquestionably aided the patentee right here that Main Judge Moore was on the panel, but Choose Hughes and Stark also signed-on to the impression.

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Patentee did not fare as well on anticipation/obviousness. Defendant experienced relied on “RFID for DUMMIES” as the key prior artwork.  That reference included a description of how ID allocation worked when the central server was unavailable. And, the court docket concluded that a sensible juror “could locate RFID for Dummies discloses each individual component of declare 1.”

RFID for Dummies describes a methodology for making certain the assignment of one of a kind serial quantities to RFID tags when a central numbering authority is inaccessible or impractical, for case in point, when a business makes use of a number of production lines to generate the similar products. To decentralize and make possible the allocation of one of a kind serial numbers across all manufacturing strains, RFID for Dummies discloses an “intelligent hierarchy” in which “a range of serial figures for just about every merchandise is allocated to each and every manufacturing facility.” “Within a facility, a variety of numbers from all those allotted to the facility is allocated to every line” therefore successfully subdividing the serial amount “into a facility range, line variety, and subserial amount in which the allocation hierarchy is taken care of involving facility amount and line quantity.”

In accordance to the court, this description could be browse to be the similar point that is claimed. In other words and phrases, this is an problem for the jury.  Whilst the concentration was on anticipation, the Federal Circuit listed here also vacated the solitary reference summary judgment of non-obviousness.  (The courtroom also concluded that a second reference also could moderately be viewed as anticipatory and that summary judgment experienced been inappropriate).

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On remand, the court will probably maintain a new trial on anticipation/obviousness. If the promises are nevertheless legitimate then the damages verdict really should stand.

The defendant on charm argued that the judge should have requested the jury for a lump-sum payment rather than only a for every-piece royalty total.  But, throughout demo the defendant never state-of-the-art a lump-sum damages concept.

It may be that in some circumstances licenses, standing on your own without the need of supporting lay or pro testimony, can support a lump-sum instruction. This is not these kinds of a circumstance. Below, Avery Dennison clearly and continuously argued from the relevancy of the [lump sum] licenses on which it now relies. Its damages pro opined at minimum two of the a few licenses had been not handy to knowledge the price of a hypothetical negotiation. . . . Avery Dennison rather concentrated its damages idea at demo on design and style-around costs, which it offered to the jury as a setting up-position in a hypothetical negotiation for a operating royalty, not a lump-sum payment.

Wherever Avery Dennison failed to existing a lump-sum damages concept to the jury and, also, actively undermined the really evidentiary foundation it now contends expected a lump-sum instruction, the district court docket did not err in declining to include this kind of an instruction. Further, because there was insufficient evidence to warrant a lump-sum instruction, the district court properly declined to incorporate a lump sum possibility on the verdict kind.

Slip oP.

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Sanctions: Soon after trial had concluded, Avery Dennison disclosed that it experienced sold much more than 2-billion additional RFID tags.  The district court at that point sanctioned the business an supplemental .2 cents per infringing tag. The district courtroom additionally mentioned Avery Dennison’s lousy behavior during the litigation approach: “patent and constant disregard for the seriousness of this litigation and its envisioned obligations.” On appeal, the Federal Circuit uncovered no common trouble with awarding sanctions or the method involved.

Even so, the Federal Circuit did come across fault with the district court’s sanction calculation. In specific, the district courtroom sanctioned the defendant .2 cents for just about every infringing tag. It must have imposed the penalty only on the 2 billion that were disclosed late in the process. That would have totaled out to ~ $5 million  sanction in its place of ~ $20 million.

On remand, the district court can re-institute the sanctions.  The appellate panel regarded that a new validity trial will be ongoing, but pointed out that the sanctions award can persist even if the defendant finally wins the new trial.

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Derek Shaffer (Quinn Emanuel) dealt with the charm for Avery Dennison with Robert Greenspoon (Dunlap Bennett) for Adasa.

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